An Arrogancy of Jurisdiction
Suppose I told you that there is an organization which claims to have worldwide jurisdiction (literally, “where the law speaks”) over all matters of criminal law and justice, regardless of who a person is? No I’m not referring to the ICC, but instead to the Obama administration.
The Obama administration is considering a criminal trial in Washington for the Guantanamo Bay detainee suspected of masterminding the bombing of a Bali nightclub that killed 202 people, a plan that would bring one of the world’s most notorious terrorism suspects just steps from the U.S. Capitol, The Associated Press has learned.
Riduan Isamuddin, better known as Hambali, was allegedly Osama bin Laden’s point man in Indonesia and, until his capture in August 2003, was believed to be the main link between al-Qaida and Jemaah Islamiyah, the terror group blamed for the 2002 bombing on the island of Bali.
It’s not readily apparent what charges would be brought against Hambali, but a real question exists as to exactly what power our civil judicial system would have over him. In order to pass judgment on anyone, a court must have personal jurisdiction over the defendant, which essentially means that he has some nexus with the place where his trial takes place. With respect to Khalid Sheikh Mohammed, there is at least a good argument that his alleged activities with respect to the 9/11 attacks and the World Trade Center bombings creates a connection with the court of record in New York City. In contrast, Hambali does not, as far as anyone has alleged, have any connection whatsoever with the District of Columbia, nor with anywhere else in the United States. So on what basis can a DC court claim to have any power over his person?
Yet that’s just what the Obama administration proposes to do. It is considering trying Hambali in a federal civil court, supposedly for his terrorist actions (which are legion, to be sure) elsewhere in the world. Most famously, Hambali is thought to be the mastermind behind the devastating bombings in Bali back in 2002. But Bali is in Indonesia, not the United States. Indeed, Jemaah Islamiya, of which Hambali is known to be the operations coordinator and chief liason to al Qaeda regarding its Southeast Asia conquests, has not been alleged to be involved in any actions in America or her protectorates. All of which should lead to the inexorable conclusion that our federal courts have no jurisdiction over Hambali.
Perhaps no real harm would come from a court reaching such a decision. It wouldn’t lead to a release of the prisoner, necessarily, since the question of guilt or innocence would never be addressed. But what if, instead, a ruling is made that there is personal jurisdiction over Hambali? Stranger things have happened — witness the vast expansion of judicial power created in Boumediene v. Bush, where the Supreme Court found that its jurisdiction for habeas corpus purposes extended to any person within America’s exclusive control. Should a DC court find it does have personal jurisdiction over a person who has no connection to America except for being captured by her soldiers, that would be paramount to declaring American law and jurisprudence the law of every land. In other words, we would be claiming that our laws “speak” everywhere and for everyone, whether you like it or not.
If you are inclined to believe that holding enemy combatants at GITMO directly aids al Qaeda’s recruitment efforts, how do you think the terrorist organization and her adherents will take to our claim that they, and everyone else in the world, are subject to our civil laws? How will the rest of the world view such an arrogant statement? Beyond satisfying some petty political aims, by taking such a misguided step as this the Obama administration is not doing the U.S. any favors, and is likely damaging our interests.